Month: January 2023

It is said that the Old Testament has so many commandments you get a new one for each day of the year. The United States is like that, only with mass shootings instead of religious decrees. According to the statistics of the Gun Violence Archive, in 2022 there were 647 reported mass shootings in the U.S. Almost two shootings per day on average. The total number of gun-related deaths last year was 44 290. More than a half of these were suicides, and the rest were homicides, murders, incidents of defensive gun use and unintentional deaths.

Considering the statistics, it is easy to see why Americans are keen on making their communities safer. How could they not, when they live in a country, where people can’t be sure if their children come back home from school alive or dead. Nevertheless, there are deep and divisive differences in thought regarding guns, and consensus is hard to reach. Some proudly proclaim that if you threaten them or trespass on their land, they will not call 911. Come and take it, they reply, when gun control measures are proposed. On the opposite side of the debate, people don’t believe gun ownership to guarantee freedom and personal safety. Rather, they see that it creates an environment of fear and an ample soil for gun violence. They don’t think that the only way to stop a bad guy with a gun is a good guy with a gun – instead, it is preventing the bad guy from legally obtaining the weapon in the first place. In terms of black-and-white thinking, people want to reduce harm by either restricting gun use or enabling people to have more access to them. 

This is the cultural context of New York State Rifle & Pistol Association v. Bruen, a Supreme Court judgment from June 2022. The question of the case was if the State of New York’s denial of petitioners’ concealed carry licence applications violated the Second Amendment by requiring that applicants demonstrate a special need for self-defence. The Amendment states that “a well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”. The right to keep arms and defend the lives of yourself and others, as well as property, is well-established in the sphere of home. In Bruen, the Second Amendment is examined in the aspect of bearing arms outside of that sphere.

The aim of this blog text is to analyse the argumentation used in the brief for petitioners’ and shine light on the ideology behind them. The main argument of the brief is that the Second Amendment protects the right to carry arms outside a person’s home for the purpose of self-defence, because the text of the Second Amendment guarantees the right to bear arms as well as keep them, and that history and tradition supports the right to carry weapons for self-defence. Because of this, the petitioners conclude that New York’s legislation violates their constitutional rights. 

Historical argumentation starts with English law and argues that the right to carry in public for the sole purpose of self-defence was a historically recognised right and that it has been an accepted practise for over a hundred years. Naturally, notable founding fathers are mentioned, as well as their support for carrying firearms. The right to carry arms for self-defence is argued to have been viewed as an individual right in the early Republic, and the brief notes that men in militia duty were expressly required to carry arms. Indeed, this individual right is said to continue to the reconstruction era and to the present day. The most cited recent precedent is District of Columbia v. Heller, with McDonald v. Chicago being also used to validate that self-defence as a recognised purpose of carrying arms.

When historical gun control measures are brought up, it is with distinction that the bans often targeted the use of weapons in a dangerous manner and as a means to terrify people. Therefore, the laws did not interfere with what was considered as usual carrying. The narrative of the brief is that carrying guns has always been part of the American everyday life, a societal norm. The “few decisions”, which suggested that the right to carry isn’t a constitutional one, are described to be based on erroneous premises. Moreover, gun control legislation is framed in a racist context. Legislation from such times as antebellum South, abolition of slavery and 20^th century immigration are used as examples of gun control laws being used to disenfranchise minorities. The present law is implied to have effects which deprive constitutional rights in a similar way.

A key idea behind the arguments reflects classic liberalism: the government should not involve itself it the life of the nation’s citizens unnecessarily, and it should refrain from restricting their rights as much as possible. From the second page onward, the argumentation describes the discretion of licencing officers as broad, later calling it highly discretionary and “practically unreviewable”. According to the brief, the practise is selective and those who are able to obtain a concealed carry licence are often a “celebrity or well-connected individual”. The requirement of showing a proper cause to the licencing officers and their discretion are viewed as a direct contradiction to the core of the Bill of Rights, which is to protect individuals from government officials’ arbitrariness. The Bill of Rights is an assurance that the government won’t extend its reach to areas in which the decision-making power relies on the individual. The brief paints the picture of individuals as underdogs.  Indeed, allowing citizens to carry for self-defence is viewed as protecting the little man, without the big, bad government infringing on the people’s inherent right.

How accurate is the notion that gun control laws are merely deviations from the norm? Have citizens truly been allowed to carry arms with little to no government involvement? The interpretations put forward in the brief are very debated in the academia. Ultimately, they were convincing enough for the petitioners to win their case. With 6-3 votes, the Supreme Court ruled New York’s requirement of showing a proper need for self-defence to be unconstitutional. In the future, Bruen will affect the constitutionality of gun control laws and thereby affect how easy it will be to carry guns in public. I anticipate that the arguments of the brief may be used again, for example if the Supreme Court were to rule on the prohibitions of open carry.

T. A. M. V.

The New York State Rifle & Pistol Association, Inc. v. Bruen (2022) is an interesting case in the United States of America, due to it being a historical change in the U.S. Supreme Court’s stance on gun regulation. In the U.S. Supreme Court, it is evident that the composition of the Court and the political standing of the justices have a major influence on the judgements. However, now that the composition of the Court is balanced in favour of the conservative justices, perhaps it could be said that the rules of the game have also changed.  This has led the liberal side, in this case the Respondents’, to choose a way of argumentation, which has been mostly used by the conservative side: the originalism or the historical interpretation of the law. This blog text focuses on the brief for Respondents in the Bruen case.

The Respondents state already in the first paragraph of the introduction that the claim of Petitioners “defies both the historical record and this Court’s precedents.” This seems to set the tone of arguments for them. In their opinion, the Petitioners have spent most of their brief addressing a question which was not disputed: is the right to carry arms outside the home for self-defence embodied by the Second Amendment. The Respondents argue that, in the U.S., there has always been some form of restrictions which were used in public places. Thus, the carrying of a firearm has also historically been conditional. According to the Respondents, this settled practice dates “from medieval England through this Nation’s founding and beyond.” 

In the Petitioners’ view the right to carry arms is guaranteed by the Second Amendment. New York’s denial to grant the two individuals the license for self-defence is, thus, a violation of that right. The Respondents state that in Heller it was recognized that individuals have right “to keep and bear arms” but this entails only the “core lawful purpose.” The right does not include the possibility to carry arms only because the self-defence is potentially needed everywhere. Contrary to what the Petitioners claim have local officials long had freedom to decide the circumstances in which it is possible to carry firearms in public. Historically, just the carrying of a firearm in populous areas could constitute circumstances “apt to terrify the People.” The Petitioners leave out vital information which could be important when considering the historical interpretation of the law. This then leads the Respondents to fill in these blank spaces and to correct the historical inaccuracies. It is certainly in the Petitioners interest to convince the Court of their arguments, but it still seems quite peculiar.

The Petitioners also raise the question whether the discretion given by the New York law to local licensing officers was against the Second Amendment. The Respondents state that the discretion that is given to local officers is neither “boundless” nor “unreviewable.” The licensing decisions can be challenged in New York courts and will be set aside if a decision is “arbitrary or capricious” or contrary to law. The Respondents note about the long historical tradition that New York has followed, and that New York’s law is less restrictive than its historical antecedents. Therefore, it is not possible that the law could violate “historically rooted constitutional norms.” 

The Petitioners suggest that the discretion in “proper cause” was historically intended to disarm “disfavored groups” such as Black Americans and immigrants. On the contrary, according to the Respondents, such laws were crucial for the protection of “freedmen from the violence and intimidation perpetrated by whites” in the postbellum South. Also, there is nothing in the historical records that could uphold the claim of the Petitioners that such laws were of anti-immigrant intent. It is evident that the Petitioners attempt to distort history for their own benefit.

The most interesting detail in the Bruen case is the quantity of historical arguments on the side of the Respondents. As previously said, this is a quite unusual approach for a liberal side to choose. The originalism is mostly used by conservatives to advance their arguments in courts by using history inaccurately. Could this be the new approach for the liberals? 

The Bruen case demonstrates the absurdity of the U.S. Supreme Court. The political standing of the justices has a major role in deciding the end result. The Respondents used the rules set by the other side expertly against them. They argued with a historical interpretation of law, only to fail in the end due to the justices’ political standings. The new standard seems to be historical inaccuracies and political agendas. As soon as the balance of the political parties favours the other side, the whole roulette might start anew.

T. A. M. V.

United States v. Cruikshank, 92 U.S. 542 (1875) was a landmark case in the history of the United States, and it has had a lasting impact on the interpretation of the Second Amendment and the protection of civil rights in United States. The case arose out of the Colfax massacre, a violent attack on African American political activists in Louisiana in 1873. William Cruikshank and other white supremacists were charged with violating the civil rights of the victims, who were attempting to defend their right to vote.

The Colfax massacre was rooted in the political and social tensions that existed in the South during the late 19th century, following the end of the Civil War and the abolition of slavery. In the years after the war, many white Southerners were annoyed at the political and economic changes that had occurred as a result of the war and the subsequent passage of the 13th, 14th, and 15th amendments to the U.S. Constitution. These amendments granted citizenship and voting rights to African Americans, which many white Southerners viewed as a threat to their own political and economic power. In Louisiana, these tensions were particularly evident in the years leading up to the Colfax massacre. A disputed election in 1872 had led to a power struggle between the state’s Republican governor and a group of white supremacists, who sought to overthrow the governor and regain control of the state government. On April 13, 1873, a group of white supremacists attacked the courthouse, which was being defended by a group of black men. The attack turned into a brutal slaughter, with the white supremacists killing an estimated 150 black men, while injuring many more.

The defendants in the case, William Cruikshank and other white supremacists, were charged with violating the Enforcement Act of 1870. The defendants were accused of conspiring to deprive African American citizens of their rights to bear arms and to assemble peaceably, in violation of the Second Amendment and the Fourteenth Amendment of the United States Constitution. The question before the Supreme Court was whether the Second Amendment applies to the actions of private individuals and state governments, or whether it only applies to the actions of the federal government. The Court ruled that the Second Amendment only applies to the actions of the federal government, and not to the actions of private individuals or state governments. The decision effectively nullified the Enforcement Act of 1870 and that made it possible to continue violence and discrimination against African Americans in the decades followed.

The debate over gun control in the United States is a contentious and complex issue that has been the subject of political and social discussion for a long time. In recent decades, there has been a renewed debate in the United States over the interpretation of the Second Amendment, with some arguing that the amendment guarantees an individual right to bear arms, while others argue that it is a collective right that applies only to state-organized militias. The Supreme Court has issued a number of important decisions in this area, most notably District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010). These recent decisions have overturned the interpretation of the Second Amendment established in Cruikshank, which limited the application of the amendment to the federal government, and not to state governments or private individuals. 

In my opinion, the judgment in Cruikshank is quite questionable if not totally irrational, but we also have to remember the era when the decision was given. Even though it’s been almost 150 years since Cruikshank, we can still see that the gun control and the civil rights are still current topics discussed in the United States. One could guess that there are still plenty of U.S. Supreme Court cases in the future dealing with similar issues.

T. A. M. V.

Introduction

The American legislation regarding individuals’ right to keep and bear firearms is unique in other world’s perspective. One’s right to carry and own guns is based on the bill of rights, and more specific it is based on the second amendment. According to the text, a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. However, the need for a citizens need for self-defense with firearms is broadly disputed in today’s America, since society has changed since the declaration of the bill of rights. 

For example, in case New York State Rifle & Pistol Association v. Bruen, the New York State’s Police had to apply for a license to carry firearms outside their homes. In other words, citizens needed a proper cause if they wanted to bear guns in public places. The petitioners in New York State Rifle & Pistol Association v. Bruen claimed that this kind of action violates their rights, and the case was taken all the way to the Supreme Court. The court found that New York’s system violated citizens’ right to keep fire arms. 

The case I will scrutinize most in my blog text will be case District of Columbia v. Heller from the year 2008. In this case was a question if policeman Heller (Petitioner) could buy and keep fire arms to self-defense. As we know, the first ten amendments aka the bill of rights are regulated to restrict federal powers from restricting individuals. However, part of the amendments can be contested also on a state level because of due process clause, which is incorporated to apply also states by the fourteenth amendment. In this case court didn’t make a decision whether the second amendment is incorporated or not, since D.C isn’t a state but a federal enclave. The evaluation of the incorporation was given two years later in case McDonald v. Chicago. 

The facts of the case 

As I already briefly mentioned, in case District of Columbia v. Heller Mr. Heller was a police officer who guarded the federal buildings in D.C, and during his office hours, he bore a gun with him. Heller however also wanted to have a gun at his home for self-defense, but Washington D.C had very strict gun regulations, and Heller wasn’t allowed to do so. In the time people in D.C were allowed to have guns at their home disassembled and unloaded or bound by a trigger lock.

Supreme Court’s argumentation & judicial interpretation

Heller case was one of the first times in Supreme Court, where the court evaluated the meaning and scope of the second amendment. Last time the Supreme Court evaluated the scope of the second amendment in 1939 in case United States v. Miller.

The Court had to interpretate what the phrase: ‘’A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’’ meant in 18^th century and today’s language. The question in particular was, if it was allowed to own firearms without being connected to a well regulated militia. The Supreme Court held that the word ‘’people’’ in the second amendment should be seen as all citizens, even though on the 18^th century the people in this context most likely included only males who were eligible to fight and bear those guns. The second ambiguous word on the second amendment was the word ‘’militia’’. Because many historians and laymen would see the word militia mean only regulated and specified group of soldiers, and therefore second amendment shouldn’t apply to normal citizen. However the Supreme Court argued that during the English reign militias were loosely regulated groups created by ‘’the people‘’ and therefore anyone could have a right to keep and bear guns in the United States. The Court also evaluated what the phrase ‘’keep and bear arms’’ meant and the Court concluded that it’s everyone’s right to own and have guns even without a connection to militia. 

The court held a 5-4 decision and found that D.C’s regulation violated citizens’ right to bear and keep fire arms. 

Conclusion

After scrutinizing the Supreme Courts case District of Columbia v. Heller and articles regarding it, I found that the gun laws are getting looser since everyone has a right to carry a gun in today’s America. The second amendment is seen very sensitive right and its’ restrictions are very easily seen as violation. Bear in mind that this case was given in 2008, but the same line of interpretation is also seen in the Bruen case, which I mentioned in the earlier paragraphs, given in 2022. 

T. A. M. V.

McDonald v. Chicago was a United States Supreme Court case decided in 2010. The case dealt with whether the Second Amendment to the U.S. Constitution, which protects the right to keep and bear arms, applies to state and local governments through the incorporation of the Bill of Rights.

The case was brought by Otis McDonald, a resident of Chicago, Illinois who was concerned about crime in his neighborhood. McDonald argued that the city’s strict handgun ban, which prohibited him from owning a handgun for self-defense, violated his Second Amendment rights. The case was eventually appealed to the U.S. Supreme Court.

The defendants (the City of Chicago and Oak Park, Illinois) argued that the Second Amendment did not apply to state and local governments, and that the Supreme Court’s previous ruling in District of Columbia v. Heller (2008) only applied to federal laws and regulations. They also argued that the strict gun control laws were necessary to address the high level of gun violence in Chicago.

In a 5-4 decision, the Supreme Court held that the Second Amendment does apply to state and local governments through the incorporation of the Bill of Rights. This is a highly contentious issue in the United States, as it has the potential to significantly impact the ability of state and local governments to regulate firearms. The court held that the right to keep and bear arms is “fundamental” and “deeply rooted” in the nation’s history and tradition, and that the Chicago handgun ban was therefore unconstitutional.

The McDonald v. Chicago decision was a significant victory for gun rights advocates, as it established that the Second Amendment applies to state and local governments and not just the federal government. The decision has also had a major impact on other cases involving gun control laws, with many laws being struck down or modified as a result.

The majority opinion, written by Justice Alito, argued that the Second Amendment is incorporated against the states under the Fourteenth Amendment’s Due Process Clause, which prohibits state and local governments from denying individuals of “liberty” without “due process of law.” The Court found that the Second Amendment guarantees an individual right to possess and carry firearms for self-defense and that this right is fundamental and applies to the states under the Due Process Clause.

However, the dissenting opinion, written by Justice Stevens, argued that the Second Amendment does not apply to the states, and that the Court’s decision was a departure from long-established precedent. He argued that the incorporation of the Bill of Rights against the states through the Fourteenth Amendment was not intended to include the Second Amendment.

Gun rights advocates generally view the McDonald v. Chicago decision as a victory for the Second Amendment and individual liberty. They argue that the decision affirms the right of individuals to own and carry firearms for self-defense, and that it will help to strike down restrictive gun control laws at the state and local level.

It is good to note that these Supreme court’s rulings set a huge precedent for future Second Amendment related cases, causing a domino-effect. For example, Caetano v. Massachusetts (2016) the Second Amendment was extended to stun guns, and furthermore in NYSRPA v. City of New York (2019) and NYSRPA v. Bruen (2022), the stand on gun-freedom leaned heavily towards a more conservatist point of view which effectively weakened the states’ power to regulate gun-freedom related laws.

Gun control advocates generally view the decision as a setback for public safety. They argue that the decision will make it harder to enact and enforce laws designed to reduce gun violence and make communities safer. They also assert that the decision could lead to more widespread gun ownership and ultimately more gun-related deaths.

Additionally, from a legal standpoint, some have criticized the Court’s decision in McDonald v. Chicago, arguing that the Court misconstrued the original intent of the Second Amendment and the Fourteenth Amendment, and that the decision was not based on sound legal reasoning. 

The dangers shown in these Supreme Court cases are related to the freedom of interpretation of what could be regarded as the most highly valued pieces of legal text. The possibility of impacting the whole nation’s legal system on a basis of an individual’s subjective political view is rather an uncomforting thought. 

T. A. M. V.

In the case Carson v. Makin, 596 U.S (2022), decided June 21, 2022 the Supreme Court of the United States ruled in favor of the petitioners with a conservative 6 to 3 majority that has become very frequent in the recent years. In this text I will focus on the dissenting opinion written by Justice Stephen Breyer, with whom Justice Elena Kagan joined and Justice Sonia Sotomayor joined with the exception of Part 1-B in the dissenting opinion. Briefly put, this case is, on a constitutional level, about the two Religion Clauses in the First Amendment – the Establishment Clause and the Free Exercise Clause. 

The state of Maine has a tuition funding program that provides funding for students to attend a private school if there is no public high school available in their area. These areas, called school administrative units (SAUs), can meet their requirements by contracting with a high school or by paying the tuition for one, where the student has been accepted. In both instances, the high school in question must be either a public school or an approved private school. There are two criteria for a school to meet in order to be considered an approved school. It must meet the state’s obligatory attendance requirements and be “nonsectarian in accordance with the First Amendment”. The petitioners in this case wanted to receive funding for schools that did not meet the nonsectarian requirement, hence raising the question of whether state law that prohibits students from using the aid program for a sectarian school violates the Religion Clauses or the Equal Protection Clause of the Constitution.

I will not go into detail regarding the majority opinion, but its shortcomings will become apparent in explaining the minority opinion. Justice Breyer begins and concludes his opinion with the historically established and accepted understanding of the interplay between the two Religion Clauses of the First Amendment. He emphasizes the importance of allowing states the flexibility “to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion” (slip op., at 1), within the scope of which Maine’s nonsectarian condition falls.

The minority, in the form of Justice Breyer’s opinion, takes a historical perspective as the basis for its arguments, which is a bit of a departure from what we usually see in terms of the conservative-liberal division. More often than not the historical reasoning is the conservative side’s approach to defending their stance. However, Justice Breyer bases his opinion on the long-standing principle of separation of church and state, and the State’s consequent neutrality towards religion.  This objective of constitutional neutrality can, according to Justice Breyer, be derived and accomplished through the ultimately complementary values represented by the two Religion Clauses of the First Amendment. The crucial shift that has taken place as a result of this ruling is one where states are no longer given the right to case-by-case consideration in interpreting and balancing the First Amendment’s Religion Clauses. Before, a state could choose to fund religious schools, whereas now it must do so. Taking away the possibility to evaluate each case on its facts shows how the majority completely disregarded the Establishment Clause and gave weight almost exclusively to the Free Exercise Clause.

Justice Breyer combats the majority’s key case references, Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S (2017) and Espinoza v. Montana Department of Revenue, 591 U.S (2020) by pointing out the fundamental difference between religious status and religious use. There is an underlying distinction between these two cases and what type of role religion plays in them. In Trinity and Espinoza, the relevance of religion was only in the status of the schools, where the funding concerned the building of cushioned playgrounds, which really is more a matter of safety for all kids no matter what type of school they attend. The way in which Carson differs, is that the schools had religion embedded in every aspect of their operations. Breyer argues that because in Carson, the schools would use the funds to promote and teach religious beliefs, it is acceptable to exclude them from funding. 

I found one of the crucial and compelling points in Breyer’s dissenting opinion to be that the concept of religious use, in Carson, goes to the extent that there is no separation between academic and religious instruction. He emphasizes how in its past decisions the court has never claimed that the Free Exercise Clause prohibits States from denying funds that would go towards religious use. States should be allowed to exclude schools that provide a religious education that is in no way a comparable alternative to a neutral civic-minded public education from its funding programs. This nonsectarian requirement, Breyer states, is constitutional because it supports the idea behind the Religion Clauses, which is to avoid religious strife.

S.N.C.S.H.S.

Introduction

The case of Carson v. Makin is a significant case of the Supreme Court of the United States from the year 2021. The case concentrates on religious freedom and widens the meaning of the Free Exercise clause of the First Amendment of the U.S. Constitution. 

The First Amendment has two views on religion: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 

In Carson v. Makin the Court ruled that sectarian schools cannot be excluded from Maine’s tuition system where some children living in areas where public schools are not available are allowed to attend private schools at public expense. According to the Court, secular and sectarian schools cannot be put in different positions when it comes to tuition given by the state for this purpose. The ruling has an influence on education in lightly populated states which have similar systems. 

Basics of the background of the case help to put the ruling into context. The state of Maine guarantees the access to free public education for every child by allowing some to attend private schools at public expense. This way Maine does not have to run as many public schools to obey its own constitution. Maine has ruled that the schools must meet the criteria set for them, which include being ”non-sectarian”. A sectarian school is “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”

The petitioners are David and Amy Carson who have sent daughter O.C. to Bangor Christian Schools (BCS), which otherwise meets the criteria Maine has set for the schools but it is considered sectarian. The family sees that O.C. should be allowed to attend BCS at public expense. Another family is also present in the case. Troy and Angela Nelson have sent their daughter A.N. to public school, and their son R.N. to Temple Academy (TA). TA as well meets other criteria but is considered sectarian. The Nelsons want A.N. to attend Temple Academy (TA) as well, but can’t afford it, so they as well see that they should be allowed the benefit.  

Both schools in question aim at developing a Christian world-view to their students. They heavily discriminate against homosexuals and transsexuals. The teachers in both schools must be “Born Again Christians”, as well as all other employees. The BCS teaches the inequality of the genders and TA accepts students pretty much only from Christian families. Both schools teach all subjects through a religious lens. 

This text analyses the key arguments used in the brief of the respondent and how they are reflected in the majority opinion of the court.

The key arguments used by the respondent

The first argument of the respondents is one that seems quite self-evident to a Nordic person. The respondents argue that sectarian education and public education are not comparable. As the respondents state in their brief, “the public benefit Maine is offering is a free public education. Petitioners want an entirely different benefit – a publicly subsidized sectarian education.” Maine should be able to set criteria for the education they spend public money on, and they have done this by setting the “non-sectarian requirement”. Thus, there should be a legitimate difference between the present system and another system where money is given to extremely religious education. 

The second argument is about whether the exclusion is based on religious status or the way how the public money would be used. The respondents argue that the religious status of the families has nothing to do with how they are treated. A non-religious family that wants to send their child to a sectarian school will be denied the benefit all the same as a religious family. The meaningful point is that they are “prohibiting public money from being used to promote and inculcate religious beliefs”. The respondents argue as well that schools’ religious status is not the reason why they are excluded; it is whether they provide sectarian education or not.

Conclusion

Both of the above mentioned core arguments were accepted in the First Circuit, but the Supreme Court majority rejected them. 

When examining the distinction between status and use, the Court saw that the use of public money on religious purposes depended on individuals’ own choice. Therefore, it was not offending the First Amendment. The Court also saw that the tuition system was clear religious discrimination: “The State pays tuition for certain students at private schools – so long as they are not religious.” The whole argument seems a little artificial to me from both sides. The respondent’s argument seems to ignore that the exclusion in reality impacts only religious families, and the Court’s argument exaggerates the level of discrimination to an untruthful dimension. The exclusion is not targeted against all religious students. The next chapter deepens my suspicion even more towards the respondent’s arguments. 

When relying on common sense, the argument about the question being “what can be public education and what cannot be” seems quite strong. However, when reading the majority opinion and the reasons why the argument didn’t survive, I am almost willing to agree with them. The non-sectarian private schools only need to be accredited by The New England Association of Schools and Colleges (NEASC), and that is one weak accreditation. The curriculums must not meet the ones of the public schools. The private schools can actually teach all kinds of suspicious stuff outside the sectarian content. The fact that both TA and BCS were accredited by NEASC tells the whole story. Even if I recognize the strong arguments behind protecting children from religious education reaching the level of brain washing, I also recognize many non-religious harmful ways of educating. The majority opinion argues that since the criteria Maine is applying is that loose, it cannot be said that the private schools accepted are part of the public school system. I see the point there.

I must say that from a Nordic perspective, Maine’s educational system is disappointing in how it tries to protect children’s right to quality education. This also raises a question whether the results would have been different, if the criteria had been stricter.

S.N.C.S.H.S.